FOOTNOTES:
1 Legg. Villæ de Arkes § xxviii. (D’Achery Spicileg. III. 608).
2 See Pictet, Origines Indo-Européennes (Paris, 1878, T. II. pp. 372-6; T. III. pp. 5-8), for the philological evidence of the development of society from the family in all the Aryan nations.
3 Vendidad, Farg. IV. 24-35 (Bleeck’s Translation, Hertford, 1864, pp. 30-1).
4 Manava Dharma Sastra, VIII. 295 sqq. Comp. Maine’s Ancient Law, pp. 260 sqq.
5 Yajnavalkya, II. 272 (Stenzler’s Translation).
6 Even among the remnants of the pre-Aryan races of India the same customs are traceable. Early in the present century Lieutenant Shaw described the hill-tribes of Rajmahal, to the north of Bengal, as recognizing the responsibility of the injurer to the injured; compensation was assessed at the pleasure of the complainant, and the kindred of the offender were compelled to contribute to it, exactly as among the barbarians who occupied Europe (Asiatic Researches, Vol. IV.).
7 Dicæarchi Frag. (Didot, Frag. Hist. Græcor.).—Apollodor. Biblioth. II. vi. 2-3.—Diodor. Siculi IV. 31.—Plut. Quæst. Græc. 46.—Maine’s Ancient Law, p. 127.
8 Tit. Liv. I. 26; V. 32.—Appiani de Bell. Hannibal. xxviii.—Dion. Halicar. II. 10; XIII. 5.
9 Esneaux, Hist. de Russie, I. 172 sqq.
10 Jo. Herburti de Fulstin Statut. Reg. Polon. tit. Homicid. (Samoscii, 1597, pp. 200 sqq.). In cases, however, of homicide committed by a kmetho, or serf, upon another, a portion of the wer-gild was paid to the magistrate.
11 See an abstract of Bojisic’s work on the customs of the southern Slavs, in the “Penn Monthly” Magazine, Phi’a, Jan. 1878, pp. 15 sqq.
12 Gradually, however, a portion of the composition money was attributed, under the name of fredum, to the king or the magistrate, as a compensation for readmitting the criminal to the public peace.
13 Ll. Edwardi C. xii. (Thorpe’s Ancient Laws, I. 467).
14 Gwentian Code, Bk. II. chap. vii. §8. (Aneurin Owen’s Ancient Laws, etc. of Wales, I. 701.)
15 Senchus Mor, I. 259 (Hancock’s ed. Dublin, 1865).
16 Grágás, Sect. IV. cap. cxiv.
17 Ibid. Sect. VIII. cap. lv.
18 Jarnsida, Mannhelge, cap. xxix.—Cf. Legg. Gulathingenses, Mannhelgi, cap. xii.
19 Constit. Eric. Ann. 1269 § vii. (Ludewig, Reliq. MSS. T. XII. p. 204).
20 Dimetian Code, Bk. II. ch. i. §§ 17-31.—Bk. III. ch. iii. §4.—Anomalous Laws, Bk. IV. ch. iii. § 11.
21 Dimetian Code, Bk. II. chap. xxiv. § 12.
22 Roisin, Franchises, etc. de la ville de Lille, pp. 106-7.
23 Charta Balduini Hannoniens. (Martene, Collect. Ampliss. I. 964.)
24 Capitul. Lib. IV. cap. 15.
25 Concil. Tribur. an. 895, can. iv.
26 Dimetian Code, Bk. II. chap. i. § 32.
27 Venedotian Code, Bk. III. chap. i. § 21.
28 The oath may be regarded as the foundation of Roman legal procedure—“Dato jurejurando non aliud quæritur, quam an juratum sit; remissa quæstione an debeatur; quasi satis probatum sit jurejurando”—L. 5, § 2, D. XII. ii. The jusjurandum necessarium could always be administered by the judge in cases of deficient evidence, and the jusjurandum in jure proffered by the plaintiff to the defendant was conclusive: “Manifestæ turpitudinis et confessionis est nolle nec jurare nec jusjurandum referre”—Ibid. l. 38.
29 Ll. Wisigoth. Lib. II. Tit. ii. c. 5.
30 Concil. Valentin. ann. 855, c. xi.
31 Ll. Ripuar. Tit. XII. § 1; ix. 17.—Capit. Ludov. Pii. ann. 819 add. ad L. Salicam, c. 15.—Capitul. L. IV. c. 29.—Ivonis Decr. XVI. 239.
32 De presbytero vero, si quilibet sacerdos a populo fuerit accusatus, si certi non fuerint testes qui criminis illati approbent veritatem, jusjurandum erit in medio, et illum testem proferat de innocentiæ suæ puritate cui nuda et aperta sunt omnia; sicque maneat in proprio gradu.—Gregor. PP. II. Epist. XIV. ad Bonifacium. Cf. Hincmari Remens. Epist. XXII.
33 Thus Alfonso the Wise endeavored to introduce into Spain the mutual challenging of the parties involved in the Roman jusjurandum in jure, by his jura de juicio (Las Siete Partidas, P. III. Tit. xi. l. 2. Cf. Espéculo, Lib. V. Tit. xi. ley 2). Oddly enough, the same procedure is found incorporated in the municipal law of Rheims in the fourteenth century, probably introduced by some over-zealous civilian; “Si alicui deferatur jusjurandum, necesse habet jurare vel referre jusjurandum, et hoc super quovis debito, vel inter quasvis personas”—Lib. Pract. de Consuetud. Remens. § 15 (Archives Législat. de Reims, P. I. p. 37). By this time, however, the oaths of parties had assumed great importance. In the legislation of St. Louis, they occupy a position which was a direct incentive to perjury. Thus he provides for the hanging of the owner of a beast which had killed a man, if he was foolish enough not to swear that he was ignorant of its being vicious. “Et si il estoit si fox que il deist que il seust la teche de la beste, il en seroit pendus pour la recoignoissance”—Établissements, Liv. I. chap. cxxi.
A charter granted to the commune of Lorris, in 1155, by Louis le Jeune, gives to burghers the privilege of rebutting by oath, without conjurators, an accusation unsupported by testimony—Chart. Ludovic. junior. ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Françaises I. 157.) And, in comparatively modern times, in Germany, the same rule was followed. “Juramento rei, quod purgationis vocatur, sæpe etiam innocentia, utpote quæ in anima constitit, probatur et indicia diluuntur;” and this oath was administered when the evidence was insufficient to justify torture. (Zangeri Tract. de Quæstionibus, cap. iii. No. 46.) In 1592, Zanger wrote an elaborate essay to prove the evils of the custom.
It is a noteworthy fact, however, that of all the medieval codes the one least affected by the influence of the Roman law was the Saxon, and in this the purgatorial power of the oath was admitted to a degree unknown elsewhere. The accused was allowed in certain cases to clear himself, however notorious were the facts, and no evidence was admitted to disprove his position, unless it were a question of theft, and the stolen articles were found in his possession, or he had suffered a previous conviction. (Jur. Provin. Saxon. Lib. I. Art. 15, 18, 39; Lib. II. Art. 4, 72.) Even this was an improvement on the previous custom, if we may believe Cardinal Henry of Susa, who denounces the practice in Saxony and Dacia, where a man can clear himself, even if he holds the stolen article in his hand and the loser has ample witnesses present (Hostiensis Aureæ Summæ Lib. V. De Purg. canon. § 3). This irrational abuse was long in vogue, and was denounced by the council of Bâle in the fifteenth century (Schilter. Thesaur. II. 291). It only prevailed in the north of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. § 3), which regulated Southern Germany, alludes to it as one of the distinguishing features of the Saxon code.
So, also, at the same period a special privilege was claimed by the inhabitants of Franconia, in virtue of which a murderer was allowed to rebut with his single oath all testimony as to his guilt, unless he chanced to be caught with the red hand—Jur. Provin. Alaman. cap. cvi. § 7.
34 “Ego solus jurare volo, tu, si audes, nega sacramentum meum et armis mecum contende.”—Ll. Ripuar. Tit. IX. § 3.
35 Laws of Wihtræd, cap. 16-21. Comp. LI. Henrici I. Tit. lxiv. § 8.
36 Anomalous Laws, Book IV. chap. i. § 11.
37 Jur. Provin. Alaman. cclxiv. 7, 8.
38 Fuero Viejo, III. ii.
39 Book VII. 109-13 (after Delongchamps’ translation).
The corresponding passage in the Institutes of Vishnu (VIII. 20-3) renders this somewhat more intelligible. When the judge swears the witness—
“A Brahmana he must address thus, ‘Declare.’
“A Kshatriya he must address thus, ‘Declare the truth.’
“A Vaisya he must address thus, ‘Thy kine, grain, and gold (shall yield thee no fruit if thou wert to give false evidence).’
“A Sudra he must address thus, ‘Thou shalt have to atone for all (possible) heavy crimes (if thou wert to give false evidence).’”
40 Institutes of Vishnu, IX. (Jolly’s Translation).
41 Iliad. XV. 36-40.—Luciani Philopseud. 5; Cataplus 11.
42 LI. 3, 4, D. XII. ii.
43 Volundarkvida 31 (Thorpe’s Sæmund’s Edda). A curious remnant of this is seen in the burgher law of Northern Germany in the thirteenth century, by which a man reclaiming a stolen horse was bound to kick its left foot with his right foot, while with his left hand he took hold of the animal’s ear and swore by its head that it was his.—Sachsisches Weichbild, art. 135.
44 Deuteron. xxi. 4-8.
45 Pausan. III. xx. 9.
46 Islands Landnamabok IV. 7; II. 9 (Ed. 1774, pp. 299, 83).
47 Keyser’s Religion of the Northmen, Pennock’s Translation, p. 238.
48 Gen. xv. 9-17.—Jer. xxxiv. 18-19.—I. Kings, viii. 31-2.—Chrysost. Orat. adv. Jud. I. 3.
49 Anastas. Biblioth. No. LXII.
50 Ecgberti Dialog. IV. (Haddan and Stubbs’s Councils of Great Britain, III. 405).
51 Gregor. Turon. Hist. Lib. V. cap. xlix. Gregory complains that this was contrary to the canons, of which more hereafter.
52 Dooms of Alfred, cap. 33.
53 Dimetian Code, Bk. II. chap. vi. § 17 (Owen, I. 431).
54 Fleta, Lib. II. cap. lxiii. § 12. The Moslem jurisprudence has a somewhat similar provision for accusatorial oaths in the Iesameh by which a murderer can be convicted, in the absence of testimony or confession, by fifty oaths sworn by relatives of the victim. Of these there must be at least two, and the fifty oaths are divided between them in proportion to their respective legal shares in the Deeyeh, or blood-money for the murder.—Du Boys, Droit Criminel des Peuples Modernes, I. 269.—Seignette, Code Mussulman, Constantine, 1878, p. lvi.
55 Fredegarii Chron. cap. xcvii.
56 Excerpt. de Libro Davidis No. xvi. (Haddan and Stubbs, I. 120).
57 Si in manu episcopi ... aut in cruce consecrata perjurat III. annos pœniteat. Si vero in cruce non consecrata perjurat, I. annum pœniteat; si autem in manu hominis laici juraverit nihil est.—Theodori Cantuar. Pœnit. cap. xxiv. § 2. (Thorpe, Ancient Laws, vol. II. p. 29.) Cf. Haddan and Stubbs, III. 423; Wasserschleben, Bussordnungen, pp. 190, 226.
58 Pœnitent. Pseudo-Gregor. III. vii. (Wasserschleben, p. 539).
59 Pœnitent. Cummeani cap. V. § 3 (Wasserschleben, p. 477).—Gratiani Decr. c. 2. Caus. XXII. Q. v. In the fourteenth century this was repeated in the penitential canons of Astesanus (§ 23), which continued until the Reformation to be a recognized authority in the confessional. Astesanus, however, explains that the obligation is equal to God, but unequal as regards the church, whence the difference in the penance.—Astesani Summa de Casibus Conscientiæ, P. I. Lib. I. Tit. xviii.
60 Anomalous Laws, Book IX. chap. v. § 3; chap. xxxviii. § 1 (Owen, II. 233, 303). The definition of relics, however, was somewhat vague—“There are three relics to swear by: the staff of a priest; the name of God; and hand to hand with the one sworn to.” Bk. XIII. ch. ii. § 219 (Ibid. II. 557).
61 Regino de Eccles. Discip. Lib. I. cap. ccc. See also Jur. Provin. Saxon, Lib. III. c. 41. Notwithstanding the laxity of these doctrines, it is not to be supposed that the true theory of the oath was altogether lost. St. Isidor of Seville, who was but little anterior to Theodore of Canterbury, well expresses it (Sententt. Lib. II. cap. xxxi. § 8): “Quacunque arte verborum quisque juret, Deus tamen, qui conscientiæ testis est, ita hoc accipit, sicut ille cui juratur intelligit,” and this, being adopted in successive collections of canons, coexisted with the above as a maxim of ecclesiastical law (Ivon. Decret. P. XII. c. 36.—Gratian. c. 13, Caus. XXII. Q. ii.).
62 Helgaldi Vit. Roberti Regis.
63 Augustin. Epist. 78, §§ 2, 3 (Ed. Benedict.).
64 Gregor. Turon. de Gloria Martyr. cap. 58, 103.
65 Suppression of Monasteries, p. 186 (Camden Soc. Pub.). The Priory of Cardigan was dependent upon the Abbey of Chertsey, and the sum named was apparently the abbot’s share of the annual “alms.”
Perhaps the most suggestive illustration of the reverence for relics is a passage in the ancient Welsh laws limiting the protection legally afforded by them—“If a person have relics upon him and does an illegal act under the relics, he is not to have protection or defence through those relics, for he has not deserved it.”—Venedotian Code, Bk. I. chap. x. § 7.
66 Espéculo, Lib. V. Tit. xi. leyes 14, 15. The oaths required of Jews and Moors were much more elaborate (Ibid. 16, 17).
67 Patetta, Le Ordalie, Torino, 1890, p. 130.
68 Yet compurgators appear in the Spanish laws of the twelfth century. See Fuero de Balbás, ann. 1135 (Coleccion de Privilegios, etc. Madrid, 1833, T. VI. p. 85).
69 The primitive Scottish procedure appears to have been based on compurgation.—Neilson’s Trial by Combat, London, 1890, p. 78.
70 First Text of Pardessus, Tit. xxxix. § 2, and Tit. xlii. § 5 (Loi Salique, Paris, 1843, pp. 21, 23). It is somewhat singular that in the subsequent recensions of the code the provision is omitted in these passages.
71 Eginhard. Annal. ann. 800.—The monkish chroniclers have endeavored to conceal the fact that Leo underwent the form of trial like a common criminal, but the evidence is indubitable. Charlemagne alludes to it in the Capitularium Aquisgranense ann. 803, in a manner which admits of no dispute.
The monk of St. Gall (De Gestis B. Carol. Mag. Lib. i. cap. 28), whose work is rather legendary in its character, describes the Pope as swearing to his innocence by his share at the day of judgment in the promises of the gospels, which he had placed upon his head.
72 Capit. Aquisgran. ann. 803, cap. vii.
73 Bonifacii Epist. cxxvi.
The subject of the oaths of priests was one of considerable perplexity during the dark ages. Among the numerous privileges assumed by the sacerdotal body was exemption from the necessity of swearing, an exemption which had the justification of the ancient Roman custom; “Sacerdotem, Vestalem, et Flaminem Dialem in omni mea jurisdictione jurare non cogam” (Edict. Perpet. ap. Aul. Gell. x. 15). The effort to obtain the reversion of this privilege dates from an early period, and was sometimes allowed and sometimes rejected by the secular authorities, both as respects promissory, judicial, and exculpatory oaths. The struggle between church and state on this subject is well exemplified in a case which occurred in 1269. The Archbishop of Reims sued a burgher of Chaudardre. When each party had to take the oath, the prelate demanded that his should be taken by his attorney. The defendant demurred to this, alleging that the archbishop had in person presented the complaint. Appeal was made to the Parlement of Paris, which decided that the defendant’s logic was correct, and that the personal oath of the prelate was requisite (Olim, I. 765).
In Spain, a bishop appearing in a secular court, either as plaintiff or defendant, was not exempt from the oath, but had the singular privilege of not being compelled to touch the gospels on which he swore.—Siete Partidas, P. III. Tit. xl. l. 24.
74 Gratian. c. 19, Caus. II. Q. V.
75 Eginhard. Annal. ann. 823.
76 Atton. de Pressuris Ecclesiast. P. 1.
77 Buchardus, Ivo, Gratianus, passim.—Ivon. Epist. 74.
78 L. Longobard. Lib. II. Tit. xxi. § 9; Tit. lv. § 12.—L. Burgund. Tit. vii.—Laws of Ethelred, Tit. ix. §§ 23, 24.—L. Henrici I. cap. lxxiv. § 1. Feudor. Lib. V. Tit. ii.
This point illustrates the essential distinction between witnesses and compurgators. The Roman law exercised great discrimination in admitting the evidence of a relative to either party in an action (Pauli Sentent. Lib. V. Tit. xv.—Ll. 4, 5, 6, 9. Dig. XXII. v.). The Wisigoths not only adopted this principle, but carried it so far as to exclude the evidence of a kinsman in a cause between his relative and a stranger (L. Wisigoth. Lib. II. Tit. iv. c. 12), which was adopted into the Carlovingian legislation (Benedict. Levit. Capitul. Lib. VI. c. 348) under the strong Romanizing influence which then prevailed. The rule, once established, retained its place through the vicissitudes of the feudal and customary law (Beaumanoir, Coutumes du Beauvoisis, cap. xxxix. § 38.—Cout. de Bretagne, Tit. vii. art. 161, 162). In the ancient Brahmanic legislation the evidence of both friends and enemies was excluded (Institutes of Vishnu, viii. 3).
79 Anomalous Laws, Bk. IX. chap. ii. § 4; chap. v. § 2 (Owen, II. 225, 233). This collection of laws is posterior to the year 1430.
80 Anomalous Laws, Bk. V. chap. ii. § 117 (Ibid. II. p. 85).
81 Ibid. § 144 (p. 95).
82 Aimoini Lib. III. c. 29.
83 Greg. Turon. Lib. VIII. c. 9.
84 Herman. Contract. ann. 899.
85 Spelman. Concil. I. 335.
86 Venedotian Code, Book III. chap. i. §§ 1-10.—Dimetian and Gwentian Codes, Book II. chap. i. §§ 10-12 (Owen I. 219-21, 407, 689).—There is very great confusion in these laws as to the numbers requisite for many crimes, but with respect to the accessories of galanas, or homicide, the rule appears to have been absolute.—Cf. Spelman, Glossary s. v. Assath.
87 Venedotian Code, Book III. chap. i. § 18. Anomalous Laws, Book IV. chap. iii. §§ 12, 13 (Ibid. I. 231, II. 23).
88 Ibid. § 17 (p. 231); cf. Book II. chap. viii. § 4 (p. 137).
89 Gwentian Code, Book II. chap. iii. § 11 (Ibid. I. 691).
90 Leg. Cimbric. Lib. II. c. 9.—Constit. Woldemari Regis §§ 9, 52, 56, 86. Throughout Germany a minor son could be cleared, even in capital accusations, by the single purgatorial oath of his father, if it was the first time that they had been defendants in court.—Jur. Provin. Alaman. cap. clxix. § 1; Sachsische Weichbild, art. 76.
91 Böhlau, Nove constitutiones Dom. Alberti, pp. 2, 6, 12, 38 (Weimar, 1858). “Cum duobus viris bone opinionis et integri status, sinodalibus hominibus.” The expression is doubtless derived from the testes synodales—men of standing and reputation selected in episcopal synods to act as a kind of grand jury and report the sins of their neighbors.
92 This has been denied by those who assume that the frithborgs of Edward the Confessor are the earliest instance of such institutions, but traces of communal societies are to be found in the most ancient text of the Salic law (First text of Pardessus, Tit. XLV.), and both Childebert and Clotair II., in edicts promulgated near the close of the sixth century, hold the hundreds or townships responsible for robberies committed within their limits (Decret. Childeberti ann. 595, c. 10; Decret. Chlotarii II. c. 1).
It is not improbable that, as among all the barbarian races, the family was liable for the misdeeds of its members, so the tribe or clan of the offender was held responsible when the offence was committed upon a member of another tribe, and such edicts as those of Childebert and Clotair were merely adaptations of the rule to the existing condition of society. The most perfect early code that has reached us, that of the ancient Irish, expresses in detail the responsibility of each sept for the actions not only of its members, but of those also who were in any way connected with it. “And because the four nearest tribes bear the crime of each kinsman of their stock.... And because there are four who have an interest in every one who sues and is sued: the tribe of the father, the chief, the church, the tribe of the mother or foster-father.... Every tribe is liable after the absconding of a member of it, after notice, after warning, and after lawful waiting.”—Senchus Mor, I. 263-5.
93 See Mr. Pike’s very interesting “History of Crime in England,” Vol. I. pp. 61-2. London, 1873.
94 First text of Pardessus, Tit. XLII. § 5.
95 Marculf. App. xxxii.; xxix.
96 Pact. pro Tenore Pacis cap. vi.
97 L. Alaman. Tit. lxxvi.
98 Capit. Car. Mag. IV. ann. 803, cap. x.
99 Goldast. Constit. Imp. I. 231.
100 Hartzheim Concil. German. II. 600.
101 Lagrèze, Hist. du Droit dans les Pyrénées, p. 47, Paris, 1867.
102 Pike, op. cit. I. 451.
Hostiensis Aureæ Summæ Lib. V. Tit. De Purgat. canon. § 4.
104 Ibid. § 5.
105 Quoniam Attachiamenta cap. xxiv. §§ 1, 4; cap. lxxv. §§ 1, 4. In another subsequent code, in simple cases of theft, when the accuser had no testimony to substantiate his claim, thirty conjurators were necessary, of whom three must be nobles (Regiam Majestatem Lib. IV. c. 21). For the disputed date of the Regiam see Neilson, Trial by Combat, ch. 30.
106 Leg. Burgorum cap. xxiv. §§ 1, 3.
107 Anomalous Laws, Book XIII. chap. ii. § 94 (Owen II. 521).
108 Gwentian Code, Bk. II. chap. vii. § 10 (Ibid. I. 701).
109 Anomalous Laws, Bk. IX. chap. ii. § 4; chap. xx. § 12; chap. xxi. § 3.—Book XIV. chap. xxxviii. § 16.—Book V. chap. ii. § 112 (Ibid. II. 225, 261, 709, 83).
Under the primitive Venedotian Code (Book III. chap. i. §§ 13, 19) only twelve men were required, one-half to be nod-men, two-thirds of paternal, and one-third of maternal kin; while in the Gwentian Code (Book II. chap. ii. § 10) and in the Dimetian Code (Book II. chap. iii. § 10, Book III. chap. i. § 24), fifty are prescribed.
The nod men, as will be seen hereafter, were conjurators who took a special form of oath.
110 Anomalous Laws, Book XIV. chap. xxxviii. § 16; Book IX. chap. xx. § 12; chap. xxi. § 1.
111 Leges Wallice, Lib. II. cap. xxiii. § 17 (Owen II. 848). It is worthy of remark that one of the few instructions for legal procedures contained in the Korán relates to cases of this kind. Chapter xxiv. 6-9 directs that a husband accusing his wife of infidelity, and having no witnesses to prove it, shall substantiate his assertion by swearing five times to the truth of the charge, invoking upon himself the malediction of God; while the wife was able to rebut the accusation by the same process. As this chapter, however, was revealed to the Prophet after he had writhed for a month under a charge brought against his favorite wife Ayesha, which he could not disregard and did not wish to entertain, the law is rather to be looked upon as ex post facto than as indicating any peculiar tendency of the age or race.
112 Anomalous Laws, Book XI. chap. v. §§ 40, 41 (Ibid. II. 445).
113 Wealreaf, i. e., mortuum refere, est opus nithingi; si quis hoc negare velit, faciat hoc cum xlviii. taynis plene nobilibus.—Leg. Æthelstani, de Ordalio.